Operation of Law or Operation of Lying?

by Andrew C. McCarthy


Jonah hits on one of the things that drives me battiest about the GOP: leadership’s legerdemain in attempting to avoid accountability for unpopular legislation that they lack the courage to fight against. And while there is something to be said for Dan’s suggestion that some of this is just a matter of tailoring messaging to different constituencies, some of it is just flat out lying. 

To be fair, on the Bush tax cuts, I think Sen. McConnell and Speaker Boehner deserve to be cut some slack. When McConnell suggests that taxes went up spontaneously by “operation of law,” he has a point. Republicans controlled the government, but just barely, in the years when the tax cuts were passed and accelerated — 2001 (when senate was really 50-50) and 2003. Consequently, the GOP did not have the vote margins needed to make the Bush tax cuts “permanent” (i.e., enact them in such a way that it would have taken passage of a subsequent law to repeal them or otherwise raise taxes). Because the tax cuts were deemed to increase the deficit, the so-called “Byrd Rule” attached. That meant the cuts could be passed by a simple majority but would expire after ten years automatically (or, as Sen. McConnell puts it, “due to an operation of law”).

In that sense, McConnell’s claim is accurate: The law really did operate to sunset the cuts in the absence of any legislation to hike taxes. Now, could you argue that Republicans signed off on this arrangement and thus voted for the ultimate expiration of the cuts? Could you say that, in passing the Bush cuts, Republicans were affirmatively voting to increase taxes down the road? I suppose so, but only in the most technical sense. The reality is that if congressional Republicans and the Bush White House had not gone the Byrd Rule route, the Bush tax cuts would never have happened in the first place.

Obviously, the GOP hoped that their margin in the senate would improve. If it had, and they’d gotten a filibuster-proof majority, I’m confident they would have enacted new law to make the Bush tax cuts “permanent.” The point, though, is that Republicans never tried to raise taxes and then cover up having done so. Yes, you could argue validly that they abandoned principle in the recent eleventh-hour deal that preserved the Bush cuts for most but not all taxpayers. But it is at least equally valid to argue that, as Jonah says, they were trying to make the best of a bad situation in which taxes rates would otherwise rise for everyone once the clock struck midnight. (I realize that is an oversimplification, but you get my drift.)

This is night-and-day different from what McConnell and Boehner pulled in 2011′s debt ceiling debacle.

In that instance, as I explained at the time, Republicans insidiously camouflaged the fact that they approved $2.4 trillion in new debt, to be added on to the country’s already staggering debt of over $14 trillion. The increase could not have happened without GOP cooperation — new legislation was required to raise the ceiling, and the GOP had the numbers to block any new legislation. But although the party’s conservative base was outraged at the prospect of more borrowing when spending and debt were already out of control, Republicans were afraid that they would be crucified in the media for purportedly causing the nation to default. So, they approved the ceiling rise but designed a byzantine procedure for executing it — a procedure designed to make their approval look like opposition. 

Here’s how it worked: The $2.4 trillion rise was fully authorized, but it would be doled out in installments. As debt continued mounting, the president would have to claim each installment accordingly. The president’s claim would be enough to trigger the installment — i.e., the installment was presumptively approved. But Congress tacked on a window-dressing process enabling lawmakers to vote “to disapprove” the installments as they came due. As Republicans well knew, this process was illusory, fully intended to mislead the public. They had the votes to block debt-rise legislation in its entirety; but once they had approved that legislation, they would lack the votes necessary to take back what they had already presumptively allowed. Thus, the “disapproval” was just theater to make it look like they were voting against what they had already voted for.

That’s not a messaging problem. That’s a mendacity problem.

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